Anderson v. McHenry Township
Annotate this Case
No. 2--96--1259
________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
________________________________________________________________
ROBERT G. ANDERSON, ) Appeal from the Circuit Court
) of McHenry County.
Petitioner-Appellant, )
) No. 96--MR--196
v. )
)
McHENRY TOWNSHIP; McHENRY )
TOWNSHIP ELECTORAL BOARD; ALBERT)
A. ADAMS, Chairman of the )
McHenry Township Electoral )
Board; THOMAS BIRMINGHAM, )
McHenry Township Clerk and )
Member of the McHenry Township )
Electoral Board; BRUCE NOVAK, )
Member of the McHenry Township )
Electoral Board; JOHN C. )
HEIDLER, Objector; KATHERINE C. )
SCHULTZ, McHenry County Clerk, ) Honorable
) Jack Hoogasian,
Respondents-Appellees. ) Judge, Presiding.
________________________________________________________________
MODIFIED UPON DENIAL OF REHEARING
JUSTICE INGLIS delivered the opinion of the court:
Petitioner, Robert G. Anderson, appeals the order of the
circuit court which affirmed the decision of respondent McHenry
Township Electoral Board (Electoral Board) granting respondent John
C. Heidler's objections to petitioner's attempt to place a
referendum on the ballot for the November 1996 general election.
Petitioner submitted petitions to dissolve respondent McHenry
Township on August 19, 1996. On August 22, 1996, Heidler filed
objections to these petitions, essentially alleging that (1) there
was no certificate of the principal proponent of the petitions; (2)
the circulators' statements were false and in violation of Illinois
law; (3) the petitions did not contain the requisite number of
signatures; and (4) the dissolution of McHenry Township would harm
the residents because there was no statutory mechanism to wind up
the affairs of the township.
Respondents Albert Adams, Thomas Birmingham, and Bruce Novak,
all of whom were McHenry Township officials, composed the Electoral
Board. The Electoral Board held a hearing on the petitions and
objections on August 26, 1996. Petitioner attended the meeting,
stated that the Electoral Board did not have jurisdiction, and
declined to further participate in the hearing. After petitioner
left the hearing, Heidler testified before the Electoral Board.
The Electoral Board adjourned the meeting, traveled to respondent
McHenry County Clerk's Office, and checked voting cards in order to
verify that Heidler's objections to the signatures were valid.
Following this, the Electoral Board reconvened the hearing and
granted all of Heidler's objections, except the one claiming that
the township residents would be harmed by the dissolution.
On September 5, 1996, petitioner filed a petition for judicial
review of the Electoral Board's decision and for a writ of mandamus
to place the referendum on the November 1996 ballot. The trial
court affirmed the Electoral Board's decision and denied the writ
of mandamus on October 22, 1996. Petitioner filed his notice of
appeal on October 24, 1996, and filed a motion to place the case on
an accelerated docket, which we denied on October 25, 1996.
Petitioner contends on appeal that (1) he was deprived of due
process because of the personal pecuniary biases of the members of
the Electoral Board; (2) the Electoral Board illegally sampled the
unregistered voter cards; and (3) the Electoral Board's conclusions
were arbitrary and unsupported by the record.
First, we note that "[j]udicial review of the decision of an
electoral board is intended to remedy arbitrary or unsupported
decisions." Reyes v. Bloomingdale Township Electoral Board, 265
Ill. App. 3d 69, 72 (1994). Questions of law are reviewed de novo,
but questions of fact are reviewed deferentially and factual
determinations will be disturbed only if they are against the
manifest weight of the evidence. Reyes, 265 Ill. App. 3d at 72.
Next, respondents assert that this appeal is moot due to the
fact that the November 1996 election has passed without
petitioner's question making it onto the ballot. We disagree.
This matter clearly falls under the public interest exception to
the mootness doctrine, in that it presents an important public
issue evasive of review and capable of repetition, which, because
of the disparate resolutions by electoral boards of similar issues,
requires authoritative guidance. See Reyes, 265 Ill. App. 3d at
71-72.
Next, we turn to petitioner's contention that he was denied
due process at the hearing on the objections to his petition.
Petitioner argues that the members of the Electoral Board had a
direct, pecuniary interest in the outcome of the hearing. Because
of this interest, petitioner contends that an "impartial tribunal"
did not consider his petition. Sindermann v. Civil Service Comm'n,
275 Ill. App. 3d 917, 923 (1995). We agree.
The concept of due process applies to administrative hearings,
and the parties are guaranteed the right to a fair and impartial
tribunal. Sindermann, 275 Ill. App. 3d at 923. "A hearing wherein
the adjudicator has a substantial pecuniary interest in the
proceedings has been held to be fundamentally unfair and violative
of due process." Ryan v. Landek, 159 Ill. App. 3d 10, 12 (1987),
citing Ward v. Village of Monroeville, 409 U.S. 57, 61-62, 34 L. Ed. 2d 267, 271-72, 93 S. Ct. 80, 84 (1972).
Here, it is clear that the members of the Electoral Board had
a substantial pecuniary interest in the outcome of the hearing on
the petition. The members of a township electoral board are the
township supervisor, township clerk, and senior trustee. 10 ILCS
5/10--9 (West 1994). The record reveals that in 1993 Adams, the
McHenry Township Supervisor, received an annual salary of $45,000;
Birmingham, the McHenry Township Clerk, received an annual salary
of $8,000; and trustees received a salary of $100 per meeting.
Clearly, each member of the Electoral Board had a financial
interest in the continuation of the township. Petitioner was
deprived of due process when he was required to defend his petition
before a tribunal holding a pecuniary interest in the outcome of
the hearing.
We also note that the Electoral Board was interested in the
outcome of the hearing on petitioner's referendum for another
reason. Petitioner's referendum represented a challenge to the
Electoral Board members' continued employment as township
officials. The situation is no different than if petitioner had
been running for a township office and his nominating petition were
before the Electoral Board. Section 10--9(6) of the Election Code
provides:
"In the event that any member of the appropriate board
is a candidate for the office with relation to which the
objector's petition is filed, he shall not be eligible to
serve on that board and shall not act as a member of the
board and his place shall be filled [as provided by this
section]." 10 ILCS 5/10--9(6) (West 1994).
Thus, section 10--9 of the Election Code, which is made applicable
to the submission of referenda by section 28--4 of the Election
Code (10 ILCS 5/28--4 (West 1994)), should have been used to excuse
the members of the Electoral Board and to appoint disinterested
members to hear the objections, because petitioner's referendum
mounted a direct challenge to each member's position and continued
employment.
Respondents contend that the Electoral Board members did not
have a direct pecuniary interest in the outcome of the hearing, but
rather an indirect pecuniary interest because the board was merely
considering whether petitioner's referendum would be placed on the
ballot. We do not believe this is a meaningful distinction.
Whether "direct" or "indirect," respondents possessed a substantial
pecuniary interest in the outcome of the hearing, and this
pecuniary interest was inimical to the guarantee of a fair and
impartial tribunal. Ryan, 159 Ill. App. 3d at 12.
Respondents also contend that, because the salary of each of
the township officers could not be increased or decreased during
the term for which the officer was elected (Ill. Const. 1970, art.
VII, 9), the Electoral Board members were guaranteed a salary
until the expiration of their terms, thereby removing any pecuniary
interest they held in the outcome of the hearing. This argument
begs the question at issue. Just as one candidate may not pass on
the objections to another's candidacy, the Electoral Board members
should not have been allowed to pass on the objections to the
petition to dissolve the township, as they had an interest in
seeing the question excluded from the ballot.
Assuming the referendum passed and the township were
dissolved, the township officers would be required immediately to
wind up the affairs of the municipality (see 65 ILCS 5/7--6--4
(West 1994)), without regard to the staggering of their terms of
office (see 65 ILCS 5/7--6--6 (West 1994)). Moreover, they would
no longer be entitled to draw their salaries. See 1972 Ill. Att'y
Gen. Op. 215, 218 ("when an office is abolished all rights to that
office, including further compensation, cease"). If the township
were dissolved, the positions of the township officials would also
be dissolved, along with their eligibility for compensation.
Accordingly, even though the salaries of the elected township
officials may not be changed during their terms of office, this
provision does not divest the township officials of the pecuniary
interest in the outcome of the hearing on the objections to the
petition to place the referendum question on the ballot.
We hold that petitioner was deprived of his right to a fair
and impartial tribunal to hear the objections to his petition. In
light of our resolution of this issue, we need not pass on
petitioner's remaining contentions. Accordingly, we reverse the
judgment of the circuit court and remand for a hearing de novo
before an electoral board composed of impartial members. We direct
the Chief Judge of the circuit court of the 19th Judicial Circuit
to appoint replacement members to the Electoral Board pursuant to
section 10--9 of the Election Code (10 ILCS 5/10--9 (West 1994)).
If the decision of the newly constituted Electoral Board results in
the need for a referendum, the referendum shall be placed on the
ballot of the first election thereafter which meets all the
relevant statutory requirements of the Election Code.
Reversed and remanded with directions.
GEIGER, P.J., and McLAREN, J., concur.
________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
________________________________________________________________
ROBERT G. ANDERSON, ) Appeal from the Circuit Court
) of McHenry County.
Petitioner-Appellant, )
) No. 96--MR--196
v. )
)
McHENRY TOWNSHIP; McHENRY )
TOWNSHIP ELECTORAL BOARD; ALBERT)
A. ADAMS, Chairman of the )
McHenry Township Electoral )
Board; THOMAS BIRMINGHAM, )
McHenry Township Clerk and )
Member of the McHenry Township )
Electoral Board; BRUCE NOVAK, )
Member of the McHenry Township )
Electoral Board; JOHN C. )
HEIDLER, Objector; KATHERINE C. )
SCHULTZ, McHenry County Clerk, ) Honorable
) Jack Hoogasian,
Respondents-Appellees. ) Judge, Presiding.
________________________________________________________________
MODIFIED UPON DENIAL OF REHEARING
JUSTICE INGLIS delivered the opinion of the court:
Petitioner, Robert G. Anderson, appeals the order of the
circuit court which affirmed the decision of respondent McHenry
Township Electoral Board (Electoral Board) granting respondent John
C. Heidler's objections to petitioner's attempt to place a
referendum on the ballot for the November 1996 general election.
Petitioner submitted petitions to dissolve respondent McHenry
Township on August 19, 1996. On August 22, 1996, Heidler filed
objections to these petitions, essentially alleging that (1) there
was no certificate of the principal proponent of the petitions; (2)
the circulators' statements were false and in violation of Illinois
law; (3) the petitions did not contain the requisite number of
signatures; and (4) the dissolution of McHenry Township would harm
the residents because there was no statutory mechanism to wind up
the affairs of the township.
Respondents Albert Adams, Thomas Birmingham, and Bruce Novak,
all of whom were McHenry Township officials, composed the Electoral
Board. The Electoral Board held a hearing on the petitions and
objections on August 26, 1996. Petitioner attended the meeting,
stated that the Electoral Board did not have jurisdiction, and
declined to further participate in the hearing. After petitioner
left the hearing, Heidler testified before the Electoral Board.
The Electoral Board adjourned the meeting, traveled to respondent
McHenry County Clerk's Office, and checked voting cards in order to
verify that Heidler's objections to the signatures were valid.
Following this, the Electoral Board reconvened the hearing and
granted all of Heidler's objections, except the one claiming that
the township residents would be harmed by the dissolution.
On September 5, 1996, petitioner filed a petition for judicial
review of the Electoral Board's decision and for a writ of mandamus
to place the referendum on the November 1996 ballot. The trial
court affirmed the Electoral Board's decision and denied the writ
of mandamus on October 22, 1996. Petitioner filed his notice of
appeal on October 24, 1996, and filed a motion to place the case on
an accelerated docket, which we denied on October 25, 1996.
Petitioner contends on appeal that (1) he was deprived of due
process because of the personal pecuniary biases of the members of
the Electoral Board; (2) the Electoral Board illegally sampled the
unregistered voter cards; and (3) the Electoral Board's conclusions
were arbitrary and unsupported by the record.
First, we note that "[j]udicial review of the decision of an
electoral board is intended to remedy arbitrary or unsupported
decisions." Reyes v. Bloomingdale Township Electoral Board, 265
Ill. App. 3d 69, 72 (1994). Questions of law are reviewed de novo,
but questions of fact are reviewed deferentially and factual
determinations will be disturbed only if they are against the
manifest weight of the evidence. Reyes, 265 Ill. App. 3d at 72.
Next, respondents assert that this appeal is moot due to the
fact that the November 1996 election has passed without
petitioner's question making it onto the ballot. We disagree.
This matter clearly falls under the public interest exception to
the mootness doctrine, in that it presents an important public
issue evasive of review and capable of repetition, which, because
of the disparate resolutions by electoral boards of similar issues,
requires authoritative guidance. See Reyes, 265 Ill. App. 3d at
71-72.
Next, we turn to petitioner's contention that he was denied
due process at the hearing on the objections to his petition.
Petitioner argues that the members of the Electoral Board had a
direct, pecuniary interest in the outcome of the hearing. Because
of this interest, petitioner contends that an "impartial tribunal"
did not consider his petition. Sindermann v. Civil Service Comm'n,
275 Ill. App. 3d 917, 923 (1995). We agree.
The concept of due process applies to administrative hearings,
and the parties are guaranteed the right to a fair and impartial
tribunal. Sindermann, 275 Ill. App. 3d at 923. "A hearing wherein
the adjudicator has a substantial pecuniary interest in the
proceedings has been held to be fundamentally unfair and violative
of due process." Ryan v. Landek, 159 Ill. App. 3d 10, 12 (1987),
citing Ward v. Village of Monroeville, 409 U.S. 57, 61-62, 34 L. Ed. 2d 267, 271-72, 93 S. Ct. 80, 84 (1972).
Here, it is clear that the members of the Electoral Board had
a substantial pecuniary interest in the outcome of the hearing on
the petition. The members of a township electoral board are the
township supervisor, township clerk, and senior trustee. 10 ILCS
5/10--9 (West 1994). The record reveals that in 1993 Adams, the
McHenry Township Supervisor, received an annual salary of $45,000;
Birmingham, the McHenry Township Clerk, received an annual salary
of $8,000; and trustees received a salary of $100 per meeting.
Clearly, each member of the Electoral Board had a financial
interest in the continuation of the township. Petitioner was
deprived of due process when he was required to defend his petition
before a tribunal holding a pecuniary interest in the outcome of
the hearing.
We also note that the Electoral Board was interested in the
outcome of the hearing on petitioner's referendum for another
reason. Petitioner's referendum represented a challenge to the
Electoral Board members' continued employment as township
officials. The situation is no different than if petitioner had
been running for a township office and his nominating petition were
before the Electoral Board. Section 10--9(6) of the Election Code
provides:
"In the event that any member of the appropriate board
is a candidate for the office with relation to which the
objector's petition is filed, he shall not be eligible to
serve on that board and shall not act as a member of the
board and his place shall be filled [as provided by this
section]." 10 ILCS 5/10--9(6) (West 1994).
Thus, section 10--9 of the Election Code, which is made applicable
to the submission of referenda by section 28--4 of the Election
Code (10 ILCS 5/28--4 (West 1994)), should have been used to excuse
the members of the Electoral Board and to appoint disinterested
members to hear the objections, because petitioner's referendum
mounted a direct challenge to each member's position and continued
employment.
Respondents contend that the Electoral Board members did not
have a direct pecuniary interest in the outcome of the hearing, but
rather an indirect pecuniary interest because the board was merely
considering whether petitioner's referendum would be placed on the
ballot. We do not believe this is a meaningful distinction.
Whether "direct" or "indirect," respondents possessed a substantial
pecuniary interest in the outcome of the hearing, and this
pecuniary interest was inimical to the guarantee of a fair and
impartial tribunal. Ryan, 159 Ill. App. 3d at 12.
Respondents also contend that, because the salary of each of
the township officers could not be increased or decreased during
the term for which the officer was elected (Ill. Const. 1970, art.
VII, 9), the Electoral Board members were guaranteed a salary
until the expiration of their terms, thereby removing any pecuniary
interest they held in the outcome of the hearing. This argument
begs the question at issue. Just as one candidate may not pass on
the objections to another's candidacy, the Electoral Board members
should not have been allowed to pass on the objections to the
petition to dissolve the township, as they had an interest in
seeing the question excluded from the ballot.
Assuming the referendum passed and the township were
dissolved, the township officers would be required immediately to
wind up the affairs of the municipality (see 65 ILCS 5/7--6--4
(West 1994)), without regard to the staggering of their terms of
office (see 65 ILCS 5/7--6--6 (West 1994)). Moreover, they would
no longer be entitled to draw their salaries. See 1972 Ill. Att'y
Gen. Op. 215, 218 ("when an office is abolished all rights to that
office, including further compensation, cease"). If the township
were dissolved, the positions of the township officials would also
be dissolved, along with their eligibility for compensation.
Accordingly, even though the salaries of the elected township
officials may not be changed during their terms of office, this
provision does not divest the township officials of the pecuniary
interest in the outcome of the hearing on the objections to the
petition to place the referendum question on the ballot.
We hold that petitioner was deprived of his right to a fair
and impartial tribunal to hear the objections to his petition. In
light of our resolution of this issue, we need not pass on
petitioner's remaining contentions. Accordingly, we reverse the
judgment of the circuit court and remand for a hearing de novo
before an electoral board composed of impartial members. We direct
the Chief Judge of the circuit court of the 19th Judicial Circuit
to appoint replacement members to the Electoral Board pursuant to
section 10--9 of the Election Code (10 ILCS 5/10--9 (West 1994)).
If the decision of the newly constituted Electoral Board results in
the need for a referendum, the referendum shall be placed on the
ballot of the first election thereafter which meets all the
relevant statutory requirements of the Election Code.
Reversed and remanded with directions.
GEIGER, P.J., and McLAREN, J., concur.
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